Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

unconventional exploration in the UK. Cuadrilla is also trying to spread this aim in the Netherlands.
In September 2008, Cuadrilla has submitted an application for an exploration permit which it
receives on 13 October 2009 of the Ministry of Economic Affairs. With this permit, Cuadrilla enjoys
the exclusive right (until 25 November 2014) to investigate the availability of oil and gas in an area
of circa 2.026 km² in the province North-Brabant. Cuadrilla is at that point the first company in the
Netherlands that receives an exploration permit for the production of shale gas.
On that point, Cuadrilla has the State on its side. But for executing an exploration permit, it is also
necessary to receive several other permits, as shown by the previous paragraphs. Cuadrilla needs
inter alia a building permit from the municipality of Boxtel in which it is planning on executing the
first exploratory drilling. During this latter process, Cuadrilla starts a subsidiary: Brabant
Resources. The exploration permit is transferred to Brabant Resources on 13 April 2010. 193 On 30
September 2010 Brabant Resources submits the application for the building permit. This process
takes quite some time and includes many negotiations between Brabant Resources and the
municipality of Boxtel. Finally, near the end of 2010, the municipality of Boxtel decides to grant the
building permit and exemption from the zoning plan concerning the temporarily placement of a
mine site. However, on 2 December 2010, just before the term closes, the Rabobank in Boxtel
decides to submit a zienswijze (written opinion). 194 The Data Center of the Rabobank is located
next to the area for which the building permit and exemption is granted. This written opinion is set
aside by the municipality and it finalises the building permit on 11 January 2011. This leads to a
procedure before the Court of 's-Hertogenbosch. The Court annuls the decision of the municipality
of Boxtel on procedural grounds: the temporariness of the mining activities is not sufficiently
assured. 195 The exploration might be temporary by nature, but Cuadrilla will apply for an extraction
permit if it finds shale gas on that location. If the mine site stays in place during that process, the
temporariness is not correct. This possibility (of the establishment of a permanent facility) was also
included in the permit, whereby the permit was flawed. Both parties did not appeal against the
judgment. After this judgment there are several questions asked in the Dutch Parliament, after
which the Minister of Economic Affairs decides to conduct a research (by Witteveen+Bos) on the
exploitation of shale gas and to put the granted exploration permits 'on hold'.
4.8.2 Legal issues in practice
Interesting legal issues could be discovered on the basis of this case. The biggest issue seems
that there is no conversation between the different layers in the Dutch system. The State is the
competent authority for the exploration permit pursuant to the Mining Act (under the ground), while
the municipality is the competent authority for the Wro and Wabo permits (above the ground). 196 No
dialogue was initiated (nor was this obligatory) between the two. Hereby, neither an integral policy,
nor a bigger picture was available (such as: do we even want shale gas in the Netherlands?). 197
There was no integral weighing of all the interests at stake. Cuadrilla could in this manner receive
'quite easily' an exploration permit of the State, without a clear vision of the State on shale gas.
The (real) problems and concerns occurred at the municipality level, after which the Minister took
action. Now, as already mentioned, the Minister has proposed a Structure Vision on Shale Gas in
which such an integral weighing of interests is (finally) included. He has moreover decided to
include the Structure Vision on Shale Gas in STRONG, which makes the weighing of interest even
more integral. Here, the Minister should also consider that many municipalities (already more than
120, including Boxtel) and provinces do not approve the exploitation of shale gas 'in their
backyard'. 198
193
Stc. 2010, nr. 6071.
194
http://www.nrc.nl/apps/schaliegas/knipsel/zienswijze-rabobank-2010.pdf
195
Rechtbank 's-Hertogenbosch 25 October 2011 (case AWB 11-623 en AWB 11-672, ECLI:NL:RBSHE:2011:BU1387).
196
Interestingly enough, it does not seem from the public documents that a Water permit was requested.
197
NRC Handelsblad, 'Hoe de bubbel in Brabant barstte', 8 February 2014.
198
https://www.schaliegasvrij.nl/
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